Albemarle Steam Navigation Co. v. Worrell

45 S.E. 466, 133 N.C. 93, 1903 N.C. LEXIS 21

• Court: Supreme Court of North Carolina
• Decided: September 29, 1903
• Status: Published

Opinion

Clare, C. J.

Tbe plaintiff, owning an undivided ono-fourtb interest in tbe premises, filed a petition for actual partition by metes and bounds. Tbe defendants, owning tbe other tbree-fourtbs, alleged tbat an actual partition would be injurious, and asked for a sale. Tbe Clerk, upon tbe bearing, adjudged tbat an actual partition can be made without injury to either party, and tbat a sale would be injurious to the plaintiff. On appeal this was affirmed, and tbe defendants again appealed.

If tbe defendants bad been entitled to a jury trial as to “satisfactory proof’’ moving tbe Court to order a sale, wbieb it is not necessary to consider in tbis case, they waived it by not asking for it till after tbe Clerk bad made bis decision. Ledbetter v. Pinner, 120 N. C., 455; Railroad v. Parker, 105 N. C., 246, and cases cited.

No appeal lay, first, because tbe ruling by tbe Judge affirming tbe Clerk in ordering actual partition was not reviewable, and for tbe further reason tbat, bad it been, tbe appeal from an order appointing commissioners is interlocutory, and tbe appeal is premature. Tel. Co. v. Railroad, 83 N. C., 420; Hendrix v. Railroad, 98 N. C., 431, and cases cited. Eor tbis reason we do not notice tbe exception tbat tbe Court directed tbat tbe eastern one-fourth in value be allotted to tbe plaintiff with an alleyway. Ritchey v. Welch, 149 Ind., 214; 40 L. R. A., 105. The defendants’ strenuous objection is to actual partition instead of a sale, but it may be tbat since there must be actual partition tbe defendants may be content with tbe allotment when made. At any rate, they should merely note their exception to tbe order, giving their grounds therefor, and such matters and all other exceptions will come up on appeal from the final order, should the defendants be dissatisfied therewith.

Appeal dismissed.